“Each year, thousands of harp seals drown in cod nets and an estimated 12,000 or more endangered and threatened sea turtles die in shrimp nets. Additionally, numerous dolphins are slaughtered by purse-seine fishing.”[1]
Congress enacted the Marine Mammal Protection Act (MMPA or the Act) in an effort to protect our planet and to ensure the continued existence of marine mammals. Specifically, the Act’s purpose was to help save our planet by maintaining a healthy, stable, and sustainable population of marine mammals. The Act’s goal is to “protect and encourage marine mammals to develop to the greatest extent feasible commensurate with sound policies of resource management.”[2] Moreover, the goal includes maintaining “the heath and stability of the marine ecosystem.”[3] The Act prohibits taking of marine mammals incident to commercial fishing unless one of the exceptions applies. Even though the goal of the Act is to prevent marine mammals from “diminishing below their optimum sustainable population”, it includes numerous exceptions on takings of marine mammals.[4] Taking includes killing, harassing, and capturing of marine mammals.[5]
As Planet Protectors, we must examine the Marine Mammal Protection Act. Unfortunately, because of the exceptions and the ineffectiveness of the Act, marine mammals are not adequately protected and the goals of the Act are not being satisfied. Further, the exceptions and problems of the Marine Mammal Protection Act show us that marine mammals are not being adequately protected.
The Marine Mammal Protection Act
As Planet Protectors, we need to learn about the Marine Mammal Protection Act so that we can better understand how well we are protecting our planet. In 1972, Congress recognized that some marine mammals were in danger, and, that the mammals needed protection. Thus, they passed the MMPA in order to maintain the health and stability of marine mammals and the marine ecosystem. To do so, Congress established an optimum sustainable population. Moreover, the MMPA included a prohibition on takings of protected species. But, exceptions on the prohibition of takings are allowed.
Implementation calls for the Secretary of Commerce to use the best available scientific evidence, consult with the Marine Mammal Commission, and to proscribe regulations for taking and importing marine mammals.[6] The Secretary shall consider a number of factors when prescribing regulations on marine mammal takings. These factors include, marine mammal existing and future population levels, international treaties and United States agreement obligations, marine ecosystem stability, conservation and utilization of marine resources, and, economic and technological implementation feasibility.[7]
Penalties for Violating the Marine Mammal Protection Act
If one violates the Act, they won’t just get away with not protecting our planet. Penalties for violating the MMPA are either civil or criminal.[8] Moreover, unlawfully taking marine mammals can result in either seizure and/or forfeiture of cargo.[9] Under the Act, Congress is authorized to offer up to a $2,500 reward to any person who provides information that leads to a
conviction under the MMPA.[10] Furthermore, a person who violates the Act may be subject to a civil penalty not more than $10,000 for every violation.[11] Those who knowingly violate the Act are subject to criminal penalties that include fines not more than $20,000 for every violation and may be subject to imprisonment that shall not exceed one year.[12]
Exceptions to the Marine Mammal Protection Act
Indigenous Peoples
One exception under the MMPA is for Indigenous peoples, provided the taking of marine mammals is for a specific purpose. The provisions of the MMPA “do not apply to Native Americans, Aleuts, or Eskimos who resides in Alaska and who dwell on the coast of the North Pacific Ocean or the Arctic Ocean, if the taking of marine mammals is for subsistence purposes or is done for purposes of creating and selling authentic native articles.”[13] Indigenous peoples in the Artic, such as the Inuit, value marine mammals differently than others. For example, whales are culturally, socially, and economically important to the Inuit communities.[14] Often the food from grocery stores is scarce and prohibitively expensive for the Inuit, so, they often result to hunting marine mammals for survival reasons.[15] The Inuit rely on marine mammals in order to meet their nutritional needs because adequate food is not available elsewhere.[16] Moreover, the hunting of marine mammals is used as a means to bond with each other. After a hunt, Indigenous peoples share parts of the marine mammals, some parts are given away as gifts, and the hunt and the mammal are used as educational tools for children.[17] One Inuit stated that, “we depend on whales and other marine mammals for strength.”[18]
Diseases brought in by Europeans, Americans, and the British decimated many of the Indigenous communities and marine mammals because of the use of new advanced technologies.[19] Thus, significant marine mammal depletion was not from Indigenous hunting. Today, many Indigenous peoples continue to use traditional techniques to hunt marine mammals, thus, resulting in a smaller negative impact on marine mammal populations.
As a result of depleted marine mammals, in 1977 a ban on some forms of whaling was proposed.[20] Due to the proposed ban, the Inuit formed the Alaska Eskimo Whaling Commission that includes members from the various whaling communities.[21] The Commission’s goal is to protect subsistence whaling, whale habitat, Indigenous traditions, and promote research and education.[22] Subsequently, the Commission and the United States government reached an agreement that allocated quotas and set forth management of whales for subsistence hunting.[23] However, the agreement prohibited the sale of the whale products.[24]
This form of local management of marine mammals may, if not properly administered and monitored, add significantly over time to the decline of marine mammal populations, even if they continue to use traditional hunting techniques.
Because the MMPA allows for the Indigenous exception, all of the trust falls into the Indigenous communities to ensure that the hunting does not surpass the allowable catch limits. Allowable by catch limits set forth by the Act are determined by a complex set of criteria and mathematical formulations. Thus, it is unlikely that the Indigenous cultures will be able to implement the same criteria for determining what an allowable catch should be. Moreover, without a nationwide system in place, which accounts for all of the Indigenous marine mammals hunts, it is unlikely to account for all of the mammals that are taken.
Failure to account for all marine mammal deaths will likely lead to inaccurate data regarding actual marine mammal population sizes. The Indigenous people’s exception to the Act adds to the lack of sufficient protection of marine mammals. It is important to permit Indigenous peoples to hunt marine mammals for subsistence and to maintain cultural identity. Accordingly, when calculating allowable takes, the Secretary should consider the Indigenous peoples exception so that marine mammals are adequately protected.
Issuing Permits
Issuing permits is another exception built in to the Marine Mammal Protection Act. Under the Act, the Secretary of Commerce can issue a permit for the takings of marine mammals. The Secretary may issues permits for, “scientific research, public display, enhancing the recovery of marine mammal population, and the importation of polar bear parts taken from sport hunts in Canada.”[25] Congress amended the Act in 1981 in order to make it easier to obtain a permit for small numbers of takings, but, this easier permit process is limited to marine mammals that are not severely depleted.[26]
Permit requirements vary depending on the reason for the issuance. For example, if the permit is for public display, the Secretary must show “that the applicant offers an educational or conservational program and is open to the public on a regular basis.”[27] Furthermore, if the permit is for scientific research, the Secretary must demonstrate that “the taking is required to further a bona fide scientific purpose and does not involve unnecessary duplication of research.”[28] However, if the scientific research will result in the death of a marine mammal, than the permit requirements are exceptionally strict.[29]
Issuing permits is another exception to the MMPA, which adds to the inadequate protection of marine mammals.
Scientific research is important for understanding and furthering education of the marine environment. It also is important for marine mammal protection because enhanced protection is possible when society better understands a species, their environment, and the interactions between them. However, this exception can have devastating effects over time, and, further degrades the effectiveness of the Act.
Jurisdiction for the Act is shared by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. The National Marine Fisheries Service is responsible for issuing permits that allow for taking of marine mammals. The effectiveness of the Act will depend on who is making the decisions on what permits shall be issued, how often, and if the Act is enforced.
Planet Protectors can make a difference and ensure marine mammals are protected if they voice their opinion to their legislature and ensure they are electing officials that will protect our planet.
[1] Marc A. Yaggi, 14 Pace Envtl. L. Rev. 409 (1996).
[2] Nina M. Young, Suzanne Iudicello, 3 Ocean & Coastal L.J. 149, 152 (1997).
[3] Young, supra note 2 at 152.
[4] Young, supra note 2 at 152.
[5] Marine Mammal Protection Act, 16 U.S.C. § 1362.
[6] Regulations on taking of marine mammals, 16 USCS § 1373 (2005).
[7] 16 USCS § 1373, supra note 6.
[8] Yaggi, supra note 1 at 417.
[9] Yaggi, supra note 1 at 417.
[10] Yaggi, supra note 1 at 417.
[11] 16 USC § 1371(b).
[12] 16 USC § 1375(b).
[13] Systemic Collections – Marine Mammal Protection Act, NPECTA § 18:27; see 16 USC § 1371(b).
[14] Fae L. Korsmo, 10 Colo. J. Int’l Envtl. L. & Pol’y 419, 420 (1999).
[15] Korsmo, supra note 14 at 422.
[16] Korsmo, supra note 14 at 422.
[17] Korsmo, supra note 14 at 422.
[18] Korsmo, supra note 14 at 423.
[19] Korsmo, supra note 14 at 423.
[20] Korsmo, supra note 14 at 424.
[21] Korsmo, supra note 14 at 424.
[22] Korsmo, supra note 14 at 424.
[23] Korsmo, supra note 14 at 424.
[24] Korsmo, supra note 14 at 424.
[25] Young, supra note 2 at 154.
[26] Young, supra note 2 at 154.
[27] LaVonne R. Dye, The Marine Mammal Protection Act: Maintaining the Commitment to Marine Mammal Conservation, 43 Case W. Res. L. Rev. 1411, 1415 (1993).
[28] Dye, supra note 27 at 1417.
[29] Dye, supra note 27 at 1417.
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